Janet Difiore.

The Court Report
By Richard Blassberg

Defendant’s Mother Reveals ADA John O’Rourke “Over The Top” With Prosecutorial Misconduct
Westchester County Court, White Plains
Judge Robert DiBella Presiding

Wednesday, December 19, Kevin Cleary, 24, appeared before County Court Judge Robert DiBella in a pre-trial Wade Identification Hearing, accompanied by his 18-B Attorney, Peter Saint George Davis. The prosecutor was Assistant DA John O’Rourke. Mr. Cleary, a Mount Vernon resident, is charged under a 26-count indictment including First-Degree Attempted Robbery, Assault, Criminal Possession Of A Weapon, and Menacing, in connection with an incident on September 20, 2006 in the City of Mount Vernon.

Defense Attorney Davis opened with a statement to the Court that he had “just been informed” that the photo array, the ‘Six Pack’ used to identify his client “is being claimed lost,” by the District Attorney’s Office and, “was almost certainly presented to the Grand Jury in obtaining an indictment against my client.” Mr. Davis went on to tell the Judge that he believed the photos were Rosario Material. ADA O’Rourke responded, “It’s not Rosario. It’s not evidence at a trial. Photo arrays don’t come in at trial.”

Mr. Davis advised the Court that he intended to make application regarding the missing photos. DiBella responded, “I have no problem with your making a submission to the Court so long as it’s applicable to the issue you’ve raised.”

Judge DiBella then proceeded to express his concerns to Mr. Davis with respect to a videotape that his client’s co-Defendant, a Mr. Robert Walker, had turned over to the District Attorney’s Office, and its possible inculpatory implications for Mr. Cleary. He appeared to be nudging Davis when he remarked, “Ironically, Mr. Walker’s attorney has made a Motion for Severance from Mr. Cleary, but Mr. Cleary’s attorney (Davis) has not, despite the fact that Mr. Walker’s videotaped statement may be inculpating.”

Attorney Davis responded to the Judge, indicating that he had just been made aware of the taped statement in question and hadn’t had the opportunity to view and listen to it, but would avail himself as soon as possible and would file the appropriate motion if necessary.

Judge DiBella, apparently not satisfied that he had sufficiently alarmed the Defense Attorney, now revisited the likely need for Severance of his client from Co-Defendant Walker, asserting, “The problem was evident just based on the information accompanying each case. I would prefer if Mr. Warhit and Mr. Davis would both be present tomorrow so that we may flesh out the issue and determine what actions might be appropriate.”

DiBella went on, “I’m less concerned about who’s making the application, but more concerned that some action is taken to protect the interests of this Defendant.” ADA O’Rourke then proceeded to put on a Prosecution witness, Village of Ossining Police Officer Juan Encarnacio, who was a Police Officer for the City of Mount Vernon with three years on the job when the incident with which Kevin Cleary has been charged occurred September 20, 2006 in that city.

Encarnacio recounted, under direct examination by ADA O’Rourke, his contact with a Mr. Maricio Cruz Quevas, one of the alleged victims of the attempted robbery and assault with which Kevin Cleary is charged. Officer Encarnacio explained that he was brought into the case by Mount Vernon Detective Young because
of his facility with the Spanish language. He then described having shown a photo array to the victim/witness resulting in that individual’s having picked out Kevin Cleary.

Mr. Davis then proceeded to cross-examine Officer Encarnacio, asking, “On September 29 of last year, where were you called?” Encarnacio answered, “To the Detective Division.”

Davis: “Have you ever been certified as a translator?”


Encarnacio: “No.”

Davis then asked the officer to describe how he and Detective Young presented the photo array to the alleged victim. Officer Encarnacio responded, “The photo array was put on the table, and she (Detective Young) asked me to ask him if he could recognize any of the persons as someone who injured him, and, to circle such a person.”

Davis now asked, “Did you make any notes in connection with this case?” Of-ficer Encarnacio answered, “No.”

Then, in a very unusual move, Defendant Kevin Cleary broke in with, “Your Honor, may I speak?”

Judge DiBella answered with, “Why don’t you speak with your attorney,” which brought Cleary and Attorney Davis into a huddle, following which Davis told the Court, “Your Honor, I’m just learning now that Mr. Cleary is considering obtaining different counsel.”

Then the Defendant took the liberty of addressing the Court, again, directly with, “I don’t want to hold up the Court, but, there is a lot at stake for me, and I would like to...”

At that point, DiBella broke in with, “We are set to go to trial on January 2nd, but there is a group problem. There may be a severing of the cases. One will have to go first. I know you have a lot at stake and I’m not barring you from making an application for a different counsel or additional counsel.” Having said that, Di-
Bella then declared, “We’ll stand in recess until January 2nd.”

What followed next was totally unexpected. Upon exiting the courtroom this reporter hesitated in the corridor to copy some particulars from the calendar posted outside the courtroom. Approached by the Defendant’s mother, we briefly began to discuss the Defendant when his attorney, Mr. Davis, emerged from the courtroom, and, stopping for a moment, quipped to Ms. Cleary that her son’s comments to the Judge regarding his desire for a different attorney was a first for him and was totally unexpected.

With that, Ms. Cleary, without a moment’s hesitation, told Davis, in my presence and the presence of a very prominent Defense attorney, “I had a long conversation with Mr. O’Rourke who said ‘Mr. Davis is a crappy lawyer who doesn’t know what he is doing.’” She went on to state that ADA O’Rourke had approached
her advising her to tell her son that he, O’Rourke, was offering him a good plea deal, and that he should get rid of Mr. Davis before he messes up his chances.

Reached later at his office, Attorney Davis told this reporter, “If what I was told by Ms. Cleary is true, it is a very serious prosecutorial misconduct.” Thursday morning, this reporter returned to Judge DiBella’s courtroom. Mr.
Cleary’s Co-Defendant, not remanded to jail like Cleary, but free on $50,000 bond, was seated in the courtroom awaiting the opportunity to offer a plea of guilty. Mr. Davis, unaware of the fact that his client, Kevin Cleary, had actually been brought to the courthouse in error, and was available in the holding area, arrived at 10:25 a.m. Upon becoming aware of the fact that his client might still be within the courthouse, he brought the fact that he would wish contact with him and to have a calendar “add-on” item before the Court.

Judge DiBella called ADA O’Rourke and Defense Attorneys Barry Warhit and Russell Smith, representing Co-Defendant Robert Walker, to the bench. Following a brief conference, the Judge then turned to Attorney Davis, asking, “Mr. Davis, did you want to approach before we start?” Davis responded, “Yes, Your Honor.”

He then proceeded to the Bench and related to the Judge what had transpired in the corridor the previous afternoon.

Judge DiBella, loud enough to be easily heard in the courtroom, responded, “Let me do what I gotta do, then I’ll hear you.” The Court then proceeded to take a guilty plea from Co-Defendant Robert Walker, 30 years old. ADA O’Rourke addressed the Court, “We have agreed to accept a guilty plea to Count 15 of the Indictment,
Assault Second Degree, a D-Violent Felony, in satisfaction of all counts, with the understanding that Mr. Walker will receive six months shock incarceration and five years probation.” Walker then proceeded to formally plead guilty, and the Court established a sentence date of March 7, 2008.

At 10:55 a.m. it appeared that Mr. Cleary, having been brought to the courthouse in error, was still in the building and that he would shortly be brought upstairs to Judge DiBella’s Court. During a brief recess, as the Court awaited Cleary’s arrival, this reporter stepped out of the courtroom to find ADAs Patricia Murphy
and John O’Rourke engaged in conversation and approaching the courtroom. It was apparent that O’Rourke had just informed Murphy, his supervisor, about what Attorney Davis had said to Judge DiBella earlier in conference at the bench.

At 11:15 a.m. Defendant Kevin Cleary was brought into the courtroom. Judge DiBella asked, “Is there an application?” Mr. Davis then stated, “What I was told by Ms. Cleary was that Mr. O’Rourke allegedly told her that I didn’t know what I was talking about; that I was a pretty crappy attorney, and that that was the reason
she and her son were seeking to get another attorney.” Davis went on, “I am now placed in a position where I cannot represent him. I’ve told Mr. Cleary that I cannot even handle a possible pleading. All I’m saying is a conversation did occur and as a result I cannot feel comfortable going forward with this case.”

At that point, ADA O’Rourke, seated beside ADA Patricia Murphy, said, “We deny saying anything disparaging about Mr. Davis.”

Following that terse denial, Judge DiBella, directing his remarks to Attorney Davis, said, “Very well, I see nothing in the record other than that you have provided adequate and competent representation, and if there is a crisis of confi-dence, I’d like to know about it.”

The Judge then called upon Defendant Cleary for his take on the matter with respect to his having asked for a different attorney. The Defendant, speaking directly to DiBella, said, “My statement was based upon the conversation my mother had with the DA.”

Judge DiBella then responded to the Defendant’s apparent affirmation of what the Court had been told by Mr. Davis, telling Cleary, “Mr. O’Rourke has denied it. It’s not Mr. O’Rourke’s opinion that matters here. It’s yours and mine. I’d like to hear your feelings before I rule on this application.” (An application by Mr. Davis
to be relieved as counsel.)

Davis now addressed the Court, “Your Honor, he wants the opportunity to speak to his mother. I don’t want to get involved with a plea in the absence of his mother. If I stand in for the plea today, it will be over my objections.” Davis was sensing, from DiBella’s remarks, that he was not inclined to grant the application
for relief.

DiBella, speaking to the Defendant, then said, “I understand Mr. Davis’ position. I have no problem giving you time to speak with your mother.” He then asked the Defendant, “Are you joining Mr. Davis in his application to be relieved?

Mr. Cleary, do you want to proceed with, or without, Mr. Davis?” The Defendant responded, “With Mr. Davis on the case.”

DiBella then began to suggest that Attorney Davis contact Ms. Cleary, the Defendant’s mother, in order to arrange for her to discuss the possibility of her son’s accepting a plea agreement.

Mr. Davis, uncomfortable with that suggestion, told the Court that he did not wish to contact the Defendant’s mother, stating, “My position is based upon my conversations with Ms. Cleary. I’m not willing to have any further conversations with her.”

Analysis:

What this reporter stumbled upon last Wednesday inside of, and outside of, Judge Robert DiBella’s courtroom, specifically, the straightforward statement by the mother of a 24-year-old Defendant, under the weight of a 26-count indictment for a variety of felonies, that she had been approached by ADA John O’Rourke, the prosecutor in her son’s case, and told that his assigned 18-B attorney, Mr. Peter Saint George Davis, was, “crappy and didn’t know what he was talking about,” is so egregious, and yet so in keeping with the modus operandi of
the Westchester District Attorney’s Office, for many years.

There is obviously such a disconnect, such a span separating where that Office, under the present District Attorney, and her predecessor, stand, as compared with where the Constitutions of the United States and the State of New York stand, as to be virtually ‘over the horizon’ apart. And, incredibly, they have been getting away with so much prosecutorial misconduct for so many years, that they continue to live by the creed, “Do whatever it takes to get a conviction, no matter how unethical, how unlawful, how criminal. Just don’t get caught doing it.”

The unlawful things that prosecutors continue to do in Westchester, obviously without fear of consequences, would result in their immediate firing in the Bronx. For Patricia Murphy to be sitting beside John O’Rourke as he told the Court, “We deny saying anything disparaging about Mr. Davis,” was laughable given Murphy’s less-than-credible recent performance on the witness stand in Judge Rory Bellantoni’s Court, not to mention her years of prosecutorial misconduct, knowingly sending innocent individuals to prison by whatever means necessary.

For a prosecutor to take it upon himself to forcibly break the bond between an Accused and his attorney in any case, much less a serious criminal case, in an effort to remove that attorney whose due diligence and committment have frustrated and might possibly defeat the flawed case proffered by that prosecutor,
is totally reprehensible. Clearly, it calls for a thorough investigation. Surely, the Criminal Defense Bar should want to get to the bottom of this mother’s disclosure.